Regular Session 2021-2022 House Bill 2865 P.N. 3536

PRINTER'S NO. 3536

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

2865

Session of

2022

INTRODUCED BY GREGORY, ARMANINI, BERNSTINE, HELM, JOZWIAK,

MEHAFFIE, ORTITAY, PENNYCUICK, RADER, SHUSTERMAN AND

ZIMMERMAN, OCTOBER 3, 2022

REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, OCTOBER 3, 2022

AN ACT

Providing for filtered devices required, for manufacturer

liability, for damages and for civil action for enforcement

and penalties.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Short title.

This act shall be known and may be cited as the Protection of

Minors from Unfiltered Devices Act.

Section 2. Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Activate." The process of powering on a device and

associating the device with a new user account.

"Device." A tablet or a smart phone sold in this

Commonwealth and manufactured on or after January 1 of the year

following the effective date of this section.

"Filter." Software installed on a device that is capable of

preventing the device from accessing or displaying material that

is harmful to minors through the Internet or any applications

owned and controlled by the manufacturer and installed on the

device.

"Harmful to minors." That quality of any description or

representation, in whatsoever form, of nudity, sexual conduct,

sexual excitement or sadomasochistic abuse when it:

(1) taken as a whole, appeals to the prurient interest

in sex of minors;

(2) is patently offensive to prevailing standards in the

adult community as a whole with respect to what is suitable

material for minors; and

(3) taken as a whole, does not have serious value for

minors.

"Internet." The global information system that is logically

linked together by a globally unique address space based on the

Internet protocol, or its subsequent extensions, and that is

able to support communications using the transmission control

protocol/Internet protocol suite, or its subsequent extensions,

or other Internet-protocol-compatible protocols and that

provides, uses or makes accessible, either publicly or

privately, high-level services layered on communications and

related infrastructure.

"Manufacturer." A person that is engaged in the business of

manufacturing a device.

"Minor." An individual under 18 years of age who is not

emancipated, married or a member of the armed forces of the

United States.

"Smart phone." An electronic device that combines a cell

phone with a handheld computer, typically offering Internet

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access, data storage and text and email capabilities.

"Tablet." A mobile device that:

(1) is equipped with a mobile operating system,

touchscreen display and rechargeable battery; and

(2) has the ability to support access to a cellular

network.

Section 3. Filter required.

Beginning on January 1 following the effective date of this

section, a manufacturer shall manufacture a device that, when

activated in this Commonwealth, automatically enables a filter

that:

(1) when enabled, prevents the user from accessing or

downloading material that is harmful to minors on:

(i) A mobile data network.

(ii) An application owned and controlled by the

manufacturer.

(iii) A wired or wireless Internet network.

(2) notifies the user of the device when the filter

blocks the device from downloading an application or

accessing a website.

(3) provides a user with the opportunity to unblock a

filtered application or website.

(4) reasonably precludes a user, other than a user with

a passcode to the device, the opportunity to deactivate,

modify or uninstall the filter.

Section 4. Manufacturer liability.

(a) General rule.--Beginning January 1 following the

effective date of this subsection, a manufacturer of a device is

liable to a minor in this Commonwealth if:

(1) The device is activated in this Commonwealth.

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(2) The device does not, upon activation in this

Commonwealth, enable a filter that complies with the

requirements of section 3.

(3) The minor accesses material that is harmful to

minors on the device.

(b) Construction.--Nothing in this section shall affect any

private right of action existing under law.

section shall not apply to a manufacturer that makes a good

faith effort to provide a device that, upon activation of the

device in this Commonwealth, automatically enables a generally

accepted and commercially reasonable method of filtration

in accordance with this act and industry standards.

Section 5. Damages.

If a court finds that a manufacturer is liable under section

4, the court may award the plaintiff actual damages. A class

action may be brought under this act in accordance with

Pennsylvania Rules of Civil Procedure.

Section 6. Civil action for enforcement and penalties.

(a) Penalties.--A manufacturer that is found liable under

this act shall be:

(1) Liable for civil penalties not to exceed $10 per

violation, plus filing fees and attorney fees, in addition to

any other penalty established by law. A manufacturer

is considered to have committed a separate violation for each

device manufactured on or after January 1 following the

effective date of this paragraph, and activated in this

Commonwealth on which:

(i) a filter is not automatically enabled; and

(ii) a minor encounters material harmful to minors.

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(2) Enjoined from further violations.

(b) Damages cap.--The total civil penalty assessed in a

civil action brought under this section may not exceed $500,

regardless of the number of separate violations the plaintiff

establishes.

assessed and recovered in a civil action brought in any court of

competent jurisdiction in this Commonwealth. A plaintiff shall

prove and a court shall find, by clear and convincing

evidence, that a manufacturer manufactured a device on or after

January 1 following the effective date of this subsection that

was activated in this Commonwealth in violation of section 3.

The plaintiff shall prove all other elements by a preponderance

of the evidence.

(d) Court award.--For each violation, the court shall

specify the amount of the civil penalty, filing fees and

attorney fees. In assessing the amount of a civil penalty for a

violation of this act, the court shall consider the following:

(1) The nature and extent of the violation.

(2) The number and severity of the violations.

(3) The economic effect of the penalty on the violator.

(4) The good faith measures the violator took to comply

with this act.

(5) The timing of the measures the violator took to

comply with this act.

(6) The willfulness of the violator's misconduct.

(7) The deterrent effect that the imposition of the

penalty would have on both the violator and the regulated

community as a whole.

(8) Any other factor that the court determines.

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(e) Actions.--Actions under this part may be brought by the

Attorney General's office or by a private individual. A private

individual may bring an action in the public interest to

establish liability under section 4 after satisfying the

requirements of subsections (f), (g) and (h), if:

(1) The individual has served on the alleged violator

and the Attorney General's office a notice of an alleged

violation of section 3.

(2) The Attorney General's office has not provided a

letter to the noticing party within 45 days after the day on

which the Attorney General's office receives the notice of an

alleged violation indicating that:

(i) an action is currently being pursued or will be

pursued by the Attorney General's office regarding the

violation; or

(ii) the Attorney General believes that there is no

merit to the action.

(3) The alleged violator has not responded to the notice

of alleged violation or returned the proof of compliance form

provided in subsection (i).

(f) Notice.--The attorney for the noticing party, or the

noticing party if the noticing party is not represented by an

attorney, shall execute the notice of an alleged violation. The

notice of an alleged violation shall:

(1) State that the individual executing the notice

believes that there is a violation.

(2) Provide factual information sufficient to establish

the basis for the alleged violation.

(g) Review.--The Attorney General shall review the notice of

an alleged violation and may confer with the noticing party. The

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Attorney General shall provide, within 45 days after the day on

which the notice of an alleged violation was received, a letter

to the noticing party and the alleged violator that states

whether or not the Attorney General finds merit in the action.

(h) Notice of special compliance.--An individual who serves

a notice of an alleged violation described in subsection (f)

shall complete and provide to the alleged violator at the time

the notice of the alleged violation is served, a notice of

special compliance procedure and the proof of compliance form

under subsection (i). The individual may file an action against

the alleged violator, or recover from the alleged violator, if:

(1) The notice of alleged violation alleges that the

alleged violator failed to manufacture a device that, when

activated in this Commonwealth, automatically enabled a

filter as required under section 3.

(2) A minor encountered material harmful to minors on

the device without the option to enable a filter.

(3) Within 60 days after the day on which the alleged

violator receives the notice of the alleged violation, the

alleged violator has not:

(i) Corrected the alleged violation and all similar

violations known to the alleged violator.

(ii) Agreed to pay a penalty for the alleged

violation in the amount of $10 per violation, up to $500,

regardless of the number of separate violations alleged

in the notice.

(iii) Notified, in writing, the noticing party and

the Attorney General's office that the violation has been

corrected. The written notice under this subsection shall

be the notice of special compliance procedure and the

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proof of compliance form specified in subsection (i). The

alleged violator shall deliver the civil penalty to the

noticing party within 60 days after the day on which the

alleged violator received the notice of the alleged

violation.

(i) Form of notice.--The notice required to be provided to

an alleged violator under subsection (h) shall be presented as

follows:

Date: ________________________

Name of Noticing Party or Attorney for Noticing Party:

______________________________________________________

Address:______________________________________________

Phone Number: ________________

SPECIAL COMPLIANCE PROCEDURE

PROOF OF COMPLIANCE

You are receiving this form because the Noticing Party listed

above has alleged that you are in violation of section 3 of

the Protection of Minors from Unfiltered Devices Act.

The Noticing Party may bring legal proceedings against you

for the alleged violation checked below if:

(1) You have not actually taken the corrective steps

that you have certified in this form.

(2) The Noticing Party has not received this form at

the address shown above, accurately completed by you,

postmarked within 50 days after you receive this notice.

(3) The Noticing Party does not receive the required

$10 penalty payment for each violation alleged, with a

total payment not to exceed $500 regardless of the number

of separate violations alleged in the notice, from you at

the address shown above postmarked within 60 days of your

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receiving this notice.

PART 1: TO BE COMPLETED BY THE NOTICING PARTY

OR ATTORNEY FOR THE NOTICING PARTY

This notice of alleged violation is for failure to provide an

activated filter to protect minors against exposure to

materials considered harmful to minors. Provide complete

description of violations, including when and where observed

and the serial numbers of the devices involved.

Date: ________________________

Name of Noticing Party or Attorney for Noticing Party:

______________________________________________________

Address:______________________________________________

Phone Number: ________________

PART 2: TO BE COMPLETED BY THE

ALLEGED VIOLATOR OR AUTHORIZED REPRESENTATIVE

Certification of Compliance. Accurate completion of this form

will demonstrate you are now in compliance with section 3 of

the Protection of Minors from Unfiltered Devices Act, for the

alleged violation listed above. You must complete and submit

the form below to the Noticing Party at the address shown

above, with a copy to the Pennsylvania Attorney General's

Office, postmarked within 50 days of you receiving this

notice.

I hereby agree to pay, within 60 days of receipt of this

notice, a penalty of $10 for each violation alleged to the

Noticing Party only and certify that I have complied by

(check only one of the following):

[ ] Providing the party at the address shown above with

information about how to enable a filter.

[ ] Providing the party at the address shown above with

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information about how to exchange a device that did not

have a filter automatically enable upon activation for a

replacement device of the same model that will

automatically enable the filter upon activation in this

Commonwealth.

CERTIFICATION

My statements on this form, and on any attachments to it, are

true, complete and correct to the best of my knowledge and

belief and are made in good faith. I have carefully read the

instructions to complete this form.

Signature of alleged violator or authorized representative:

___________________________________________________________

Date: ___________________

Name and title of signatory: ______________________________

(j) Additional violations included.--If a lawsuit is

commenced, the plaintiff may include additional violations in

the claim that are discovered through the discovery process. An

alleged violator shall satisfy the conditions specified in

subsection (i) only one time per device. Notwithstanding an

alleged violator's compliance with subsection (h), the Attorney

General may file an action under subsection (e) against the

alleged violator.

(k) Reduction of civil penalty.--In any action, a court

shall reduce the amount of any civil penalty for a violation to

reflect any payment made by the alleged violator to a private

individual in accordance with subsection (h) for the same

alleged violation. Payments shall be made as follows:

(1) a civil penalty ordered by the court shall be paid

to the plaintiff as directed by the court; and

(2) a penalty paid in accordance with the special

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compliance procedure in subsection (i) shall be made directly

to the noticing party.

(l) Award of penalty.--The Office of Victims' Services shall

receive 50% of any penalty paid in accordance with this section.

Money received shall be deposited into the Crime Victim Services

and Compensation Fund. The penalty amount upon which the 50% is

calculated may not include attorney fees or costs awarded by the

court. If the penalty is paid to a noticing party in accordance

with subsection (i), the noticing party shall remit the amount

required by this subsection along with a copy of the Special

Compliance Procedure document. If a civil penalty is ordered by

the court, the plaintiff shall remit the amount required by this

subsection along with a copy of the court order.

(m) Copy of notice.--The Attorney General's office shall

provide to the Office of Victims' Services a copy of all notices

of alleged violations to which the Attorney General's office did

not respond with a letter of merit in accordance with subsection

(g). The court shall provide to the Office of Victims' Services

a copy of the court's order for payment. The Office of Victims'

Services shall:

(1) maintain a record of documents and payments

submitted under subsections (l) and (n) and this subsection;

and

(2) create and provide to the General Assembly in odd-

numbered years beginning after November of the year following

the effective date of this paragraph a report containing the

following for the previous two years:

(i) the number of notices of alleged violations

received from the Attorney General's office;

(ii) the number of court orders received; and

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(iii) the total amount received and deposited into

the Crime Victim Services and Compensation Fund.

(n) Adjustment.--Beginning May 1 of the year following the

effective date of this section, and at each five-year interval,

the Administrative Office of Pennsylvania Courts shall adjust

the dollar amount of the civil penalty provided in subsection

(a) based on the change in the annual Consumer Price Index for

the most recent five-year period ending on December 31 of the

previous year and rounded to the nearest $5. The Attorney

General shall transmit a notice of the dollar amount of the

civil penalty together with the date of the next scheduled

adjustment to the Legislative Reference Bureau for publication

in the Pennsylvania Bulletin.

Section 7. Effective date.

This act shall take effect in 60 days.

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